Seal Team 6 And The Limits Of Presidential Immunity

>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm welcoming you back to 2024 the libertarian, Professor Richard Epstein. Richard is the Peter and Kiersten Bedford senior fellow here at the Hoover Institution. He's the Lawrence A Tisch professor of law at NYU, and he also happens to be a senior lecturer at the University of Chicago.

Richard, today we're covering presidential immunity and some questions I've got for you about the 14th Amendment. So, first, let's start with former President Donald Trump, who was in front of an appeals court that was considering whether he's immune from prosecution regarding the federal charges against him for, as the accusation goes, plotting to overturn the 2020 election.

It's an argument that the lower court did not buy, and ultimately, a question I believe is gonna come up before the Supreme Court. So, Richard, I want to ask you about something specific that was brought up regarding presidential immunity that leaves me a little incredulous. And that's because Donald Trump's counsel was asked basically if a sitting president has immunity from all crimes.

The exact exchange, I guess the question was, could a president, a sitting president, order SEAL team six to order to eliminate a political rival, as in eliminate, as in kill a political rival? And if he wasn't impeached, could he be convicted? And his counsel said, no, you need to be.

The constitution says you need to be impeached and convicted first, and then you could actually go through criminal proceedings. But that means that their answer is no. As a sitting president, under any, and I say, air quotes, official duties, you were immune from political ordering murder, right? So do you believe that?

I mean, take me through that.

>> Richard A. Epstein: Well, it turns out the whole question under braced by this hypothetical, is extremely difficult to answer. It is surely the case that what the president does when he orders a murder by the SEAL team of his political rival, is going to be an impeachable offense.

And that would happen. Somebody could say, hey, it's going to happen immediately, and it's going to be a sufficient defense to this thing, so we really don't have to worry about it. But the judge essentially said, let's assume, contrary to all political expectations, that he's not going to be impeached.

Can he still stay in office? And the Trump people say the president has absolute immunity for things that take place while he's in office. Now, this is a very difficult claim to make, because the Constitution doesn't state that, in fact, the Constitution says nothing whatsoever about these kinds of immunities.

So what you have to do is you have to start to imply them for one set of reasons or another. And the reason why we have a general doctrine of immunity for the president, is that we understand that if he could be subject to political disputes, to legal responses, in cases of political disputes, every time he engaged in a particular activity that was controversial, somebody would try to sue him, and he'd be sued a thousand different times in a thousand different ways.

And the immunity doctrine is essentially a way of trying to keep the office efficient, and to prevent abuses taking place so that the separation of powers will no longer allow the president to do his executive function. But whenever you put something in by way of implication, the question is, are there going to be various kinds of exceptions to it?

And what happens is that the doctrine is itself created by judicial situations, there's nothing that stops you from creating exceptions. And here's the kind of early history of this, the famous phrase of the outer limits of your official duties derives from a case of Barbie Matteo from 1959, which was a dispute about defamation.

That's the kind of stuff you really don't want to go into court, right? But then somebody said, look, absolute immunity in all these cases is much too severe. What you really ought to do is to give a qualified immunity so that people are protected when they don't act with malice, but they aren't protected when they do.

And that test turned out to be completely unworkable, because whenever somebody takes a conscious act, you could always allege it, there's a malicious motive behind it. So you had to reject that and go back to absolute immunity. But there's a second way to think about exceptions to it.

And one of the exceptions that you could create, if there's an act of known and undisputed illegality, then any kind of protection that you have is necessarily going to be forfeited. So normally we give police the power to arrest people, but if it turns out that the reason they arrest and abuse them is because they wish to commit some kind of illegal act and they know that, then they're not going to be protected against suit.

And that would be the way in which I would think this thing would be resolved. So what happens is, the way I would argue it is that what's going on in this particular case has nothing to do with murder, it has to do with a political dispute. And so therefore, you can't make me surrender my immunity when we're in government, this kind of activity.

The problem that he's gonna lose is not on this crazy exception, it's that the immunity extends to somebody who's doing official acts. And it turns out that when you're a political campaigner trying to get in office, you're not engaged in any act as a government, you're engaged in acts as a candidate.

And it turns out of.

>> Tom Church: That's good, they're helpful, yeah.

>> Richard A. Epstein: Yeah, and it turns out, for example, suppose you were a Trump rival who wasn't in office, and you engaged in that kind of shenanigans, you would never have official immunity. So, are we gonna give the president a kind of a political advantage, saying he's gonna be protected when he engages in abusive activities when his rival's not?

I think the answer is no. So, I'm pretty confident that what will happen is that this wonderful hypothetical will be a sideshow. In the end the case will basically turn on the very simple proposition that if you're not doing anything presidential, but you're doing something political, if you're not executing the duties of your office, but what you're doing is executing the prerogatives of account candidate, it's not going to be there.

I think another way in which the point was put in the oral argument is, how can we say that if the constitution requires that the president take care that the laws be faithfully executed? You're doing that when it turns out you're knowingly violating all the laws that you're sworn by your oath to protect.

And that's going to be another way in which they're going to start to hit it. So I think that this is just a big mistake, the serious issue is the double jeopardy issue. He's been tried for J6, and any of that charge that could have been made the first time, it seems to be, has to be made that time.

Once he's acquitted in a criminal trial, which is what an impeachment is, that means he can't be tried with respect to that same group of events. Or to put it in the simplest form, you can't go after him for J6, but if you're living in Georgia, you could go after him for what happened with respect to the Georgia election, because it's a discrete set of events.

And so I think the doctrine is perfectly coherent in this case, and I think Trump should win on that particular point, even though he may be exposed elsewhere. And you're gonna then have to figure out exactly what was comprehended in that first set of events. Is it only the riot, or does it involve going in front of Pence and trying to get him to change the rules so that the states will be forced to rethink the question as to whether or not their ballots were rightly cast.

Those are interesting questions, but it seems to me that's the issue on which we have to fight. And on this particular case, I don't think you could bring an insurrection charge given the fact that something that could have been clearly comprehended when you did this the first time around through the impeachment proceedings.

>> Tom Church: Richard, help me think through the timeline and who's going to be deciding these questions. Because I mean, what we're talking about is whether Trump has immunity because it was, well, he's president and he's got, he was engaging in these actions and so throw the case out there.

If he doesn't get granted this presidential immunity, this case I believe is supposed to start in, well, Jack Smith wants it to start in March. I'm not sure if that'll happen. Is that case, that argument that going to be when, for example, the question of double jeopardy would be decided?

I guess at that point, presidential immunity would already be decided. And then you just go forward with the case whether these federal charges stick or not?

>> Richard A. Epstein: Well, it depends on how the judges rule this time around. They could easily take up the double jeopardy question and decide it one way or another.

And if they say that double jeopardy is not there, then he's gonna be subject to trial because that defense is inaccurate. But on the other hand, he also has a right to bring this thing before the Supreme Court. And I can't imagine the Supreme Court ducking this on the grounds that it's an unimportant issue related to a relatively insignificant event that's going on.

So they're gonna have to take it up, they're gonna have to schedule arguments. They have to decide cases well less than two months from Jack Smith's purported date, it's not going to happen. I, by the way, think he's completely irresponsible in suggesting that date, it only has a political motivation to try to hasten in the column.

He wants to distract the former president doing the primary system, and he wants to throw as much dirt on him in order to make sure that Joe Biden is going to be the odds on when to come a presidential election. So I regard this as sort of a very, very bad sort of thing.

And generally speaking, you are always told when you're a prosecutor, you cannot let political considerations interfere with the way in which you conduct the case. And I don't think that's what's happening here. I think the only thing that he cares about are these political considerations. So I would basically slap him down and say whatever the standard methods are, with respect to timing and the preparation of witnesses and discovery.

And everything else that may or may not happen in one of these cases, you have to follow those rules. And at that point, it would be a virtual certainty that you couldn't have this trial until after the election, which is probably the correct result. So it's kind of a very funny thing.

This is a situation where I have no appreciation for the arguments on either side of this case except for the double jeopardy argument. And I'm not so confident to say that, hey, everybody, gonna come out my own way on that. There certainly gonna be a lot of disputes over that particular question.

That's the way I would decide it based upon what I know now, somebody might be able to change my mind on it. But at this particular point, I think you should win on that, and that's enough to get rid of Jack Smith. And then we have all these other cases going around, and they're not amusement.

They will be very simple, serious things. Donald Trump already cracked when it came to the question of how we should treat Leticia James and the judges dealing with the forfeiture of his cases. He's gonna lose this election if it turns out he can't control his temper. And there's a very high probability that that will happen, that he'll lose his temper.

>> Tom Church: You know what, I always want to know what probability would you give it that he would lose his temper, Richard, between zero and one?

>> Richard A. Epstein: Well, the answer, you can't go over one.

>> Tom Church: I know.

>> Richard A. Epstein: He's gonna surely lose his temper. The real issue that you have to worry about, will he lose it in a way that makes him into a laughing stock or a fool.

Or somebody too unstable to trust with the office of the presidency, or he will be able to roam it back in and perhaps walk away from it. So I think the key issue on his temperament is not whether it's gonna happen, it's how severe it's going to be and whether or not it's gonna be totally debilitating.

And I don't know what the answer to that question is. I'm not a psychiatrist, but I know he's in need of one.

>> Tom Church: Indeed. Well, let's also talk about whether for President Trump will even be on the primary ballots in several states, because as of this moment, Colorado Supreme Court has voted to remove him from the primary ballot due to the, what is it?

Third section of the 14th Amendment for inciting or supporting insurrection or rebellion. Maine has also done this through a political official, not through their supreme Court and there's some questions there. The Supreme Court has agreed to take up this question. So we are gonna get a ruling on whether Trump can be removed from the ballots in these states.

And so I'd love to know, Richard. I mean, take me through the questions here in the 14th Amendment. I mean, there's a handful that we have to cover, right? Whether the 14th amendment is self executing, whether Congress has a role. I think that's pretty interesting because there is that last little part of section 3 of the 14th Amendment about Congress and being able to remove a disability who, I know the Supreme Court doesn't wanna get involved in this, but they have to now.

So, I mean, should he be removed from these doubts, can he be removed? Is there any feasible path to make that happen?

>> Richard A. Epstein: Well, my view about it is, this is one of the most misguided operations ever undertaken. I think the whole insurrection thing should be immediately removed from the case.

And the only question is, what's the appropriate ground? I mean, the first thing to do, I think, is to read the entire provision of section 3. And it starts off with saying about any senator, or any member of the House of Representatives, or any elector of the president or the vice president is gonna be subject to this and they don't mention the president.

And so the first question you wanna ask is, obviously the president was very much on their mind. Why did they keep them off? And I think there's a very sensible, functional explanation that we can give for this. If you look at all the people we're talking about. These are all people elected by states, including the repatriated southern states.

And the question of insurrection or rebellion is very much on your mind. There was a waiver provision that was built into the constitutional text. And later on there was a General Amnesty Act in 1872 to handle cases as this thing started to recede it into the past. But I think their particular attitude was, if in fact, we can control the electoral college, it means they're gonna be no insurrectionist or rebellion in that thing.

So that when you come to having the electoral college decide the presidential election, you've already purified the process. And so there's no reason whatsoever to deal with the president directly, because you've protected against the abuse by these other collateral devices. And one of the things that happens is most of the people who say any person who is an officer can be covered by this.

Is they don't at all discuss the question of why they had those particular prohibitions in there, and did not put the president on the list when presidential elections are there. And that, to me, is sufficient grounds to say that this thing was not doing it. Or to put it another way, if you've got a nationwide political check on this stuff having to do with former insurrectionists or anybody else.

And you've purged every major body In the electoral college from being filled with these people, that ends the situation. And then what happens is you just have a political dispute as to what goes on. Now, it turns out you could also have presidents who were elected in the process, and they could be perfectly sensible.

And then it comes to the question of whom they want to appoint to various kinds of officers. And if you look at the appointments clause of the Constitution, virtually every officer of the United States must be appointed by the President of the United States, sometimes with Senate consent and sometimes nothing.

It's a kind of a logical absurdity to say that the president can't appoint himself, and Judge Mukasey said some time ago, is I think, clearly correct. The constitution in this particular instance, draws a very strong distinction between appointed officers, which can be subject to the veto by the Congress in the last clause of section 3, and the presidential officer, for which that particular situation is completely irrelevant.

There's no way that if a president's elected, that the Congress can decide to get rid of him under that section. So what happens is people then claim two things. One, he's still an officer of the United States, which I think is clearly wrong. I think he holds an office in the United States but the term office is a technical term whose meaning is driven by the appointments clause and then the question of self-executing.

It's ironic, for every appointed officer, this would be utterly irrelevant. So one of the questions you would want to ask yourself is suppose it turns out back in 1875, you wanted to appoint John Jones to a particular office and somebody says he's an insurrectionist and Congress decides to do nothing about it.

Can you start going into civil court in every state of the union to say, we have to have some kind of a situation to make sure that this guy can't get on the ballot or can't do anything? That'd be crazy. So the only person for whom you need this alternative procedure is the president, and he's the only person who's not covered by the basic provisions under the article three.

And so the fact that you have a remedy that works for all appointive officers can't work with respect to an elective office is very strong signs that they don't want to have this thing applying to elective officers. Because then they would have done something in order to put it.

When they say it's self executed, they also get everything completely garbled. The self-evident, most leading and most important self-executing provision is in fact in section one of the 14th Amendment. Which talks about how every person born in the United States and subject to the jurisdiction thereof, is a citizen of the United States and the state in which he or she resides.

Well, if that's what it says, the Constitution does it itself. And the day this thing is signed, all the former slaves are now citizens of the United States. Pretty big change in the way in which your status is going and you don't need any legislation to do it.

Right now there's a case called sheets before the Supreme Court asking whether the Fifth Amendment is self executed. And it says, nor shall private property be taken for public use without just compensation. And what happens is there's a very funny situation in which it turns out that the federal government has not authorized, and the state government hasn't authorized this suit by statute.

Because there was enough doubt as to whether or not these things were or were not self-executing, that in 1887, Congress passed the Tucker Act. Saying, we waive sovereign immunity for the whole following class of cases, and most states have done the same thing. But Mr. Sheets was in the odd position of suing in state court, being transferred to federal court.

So he's not caught by the federal statute, he's not caught by the state statute. So the issue is now whether this clause is self-executing. I'm inclined to say the whole purpose of the taking scores is to overdo the doctrine of a sovereign immunity in this limited case, and it should happen.

But you can see what's going on here. The whole question of whether something is self-executing means whether you have to have legislation to bring a lawsuit. In this case, self-executing means, hey, the attorney general of the state of Colorado or the secretary of state of Maine or any public official anywhere can decide to keep off the ballot in their state, but nowhere else.

It's absolute insanity. They think that you want to have a presidential election where individual states decide in a national election who is or is not eligible to be on the ballot. And so I think, in effect, that all these cases are just plain wrong, and they're wrong in a big way.

They just don't have them. So some of the cases, well, Trump is not off the ballot yet because it's too early to make a decision. He may not be on the ballot at all, so we'll wait. But it's gonna completely roil an election if nobody knows how to campaign when you don't know whether or not which states are or not gonna be putting this guy on the ballot.

So suppose on October 1, a small state like New York, just a couple of people, decides, well, we thought about all of this, and we know he's on the ballot, but now we're taking him off the ballot. Well, there's no time limit on this self-executing provision. So if they win the case on October 1 and he's off the ballot, you've had the entire nation being disrupted by of the state.

So the Supreme Court has to do is to come in and say, look, we're not doing this on ripeness grounds, it's too soon, we're not doing it on standing grounds. What we're gonna do is say, this thing has no place whatsoever in the court, and this whole line of cases is gonna be shut down.

And I think the real issue is, given the structural protections that we've already put into place at this point, the election of a president is a political question to be decided by political processes. And you can vote against Trump a thousand times, and you may well be right to do so or you could vote for him.

Hey, you may even be right at that time, but this thing has no business being put in this way. And then the third round, of course, is what is an insurrection? And what does it mean to be engaged in an insurrection? Well, I've been doing some work lately on the Spanish American and after it was over, there was a genuine insurrection in the Philippines, which we had just conquered.

And what happens is, President McKinley says, I'm telling my secretary of state, Elihu Root, not of state, rather secretary of war, stop this, because that's an insurrection. Well, when I see that, I see people with an organized army, a prolonged resistance, and all these particular episodes. So it looks like it's an internal war.

Then you look at the Colorado situation. What's that definition of an insurrection? Two or more people, right? Using force of the threat of force in order to alter the outcome of a political process, like an election. So every time you get a bunch of gangsters in 1964 or 1955, who excluded southern blacks from voting, these guys were engaged in an insurrection.

A voter obstruction is not an insurrection. It may be a riot, it may be all sorts of other offenses. But in order to have an insurrection, you have to have armed resistance, which is organized over a prolonged period of time. Which is trying not to alter the procedures within the government, that is, send it back to the states, but to overthrow the government in question.

And you don't have anything like that. And the idea that Donald Trump was engaged in that when the silly man decides not to call it off, this is an insurrection by indifference. I don't think that that works. I think they're wrong on that. From start to finish, this is a straight political maneuver.

It's got a lot of cleverness about it. But when you look at it with the slightest bit of closeness, it turns out the whole thing ought to evaporate. There are enough distractions we have already in this situation, because even when you get rid of the insurrection stuff, you still have all the criminal trials going on.

You have a real question. For example, if you're in jail under a particular situation, under state law, can you, in fact, still be president of the United States? I think the answer to that question is yes. And then what happens is, I think this makes sure that the laws can be faithfully executed.

It has to be led out of jail. And indeed, I've taken for a very long time, and I'll just end on this note, the following very simple proposition. If you recall, in the case of Clinton against Jones, what they did is they had Paul Jones trying to sue the president of the United States for sexual harassment.

And what Justice Stevens said, we can't have a trial, but we can have a deposition. And the deposition resulted in some, shall we say, indiscreet statements by the president. Then he had an impeachment hearing. What you do when you have, this is, you never let any legal proceeding get close to a president so long as he's within the outer perimeter of his duties.

And what you say instead is you could collect documents and you could read them and organize them. You could waive the statute of limitations, but you can't take a deposition of the guy. You can't take a deposition of his friends because they're gonna do something that's crazy. And then you just postpone everything, waive the statute of limitations, and when he's out of office, you continue with the hearing.

They didn't do that. And that was, I thought, an absolute disaster because they didn't quite understand how powerful a deposition is. I'm no trial lawyer, but I've had my deposition taken once or twice, and I can tell you the following thing that was told to me by my friend Gary Eldon when I was about to be deposed.

He says, I want you, during this deposition, to look at the fingers of the court reporter, and you know that every time you're speaking, she's writing it down. And if you try to change it afterwards, you're always entitled to do so. But they're always entitled to introduce the original version.

So you make mistakes, it's fatal. And in fact, depositions are oftentimes much more dangerous than trials. Of course, you're less prepared for them. And what happens is you just don't allow any, anything that could basically blow up the United States order of power because of a sexual peccadillo.

You just don't want that stuff to happen in these kinds of situations. And remember, we started with the president ordering a SEAL team, and that's not what we wanna worry about. And that was when he was in Ole Miss. But having a sexual offense beforehand is just not the thing to disrupt the presidency.

You put it all off. And in this case, I think what we ought to do is have a public resistance to this and end it. If you wanna get rid of Donald Trump, beat him at the polls.

>> Tom Church: You've been listening to the Libertarian podcast with Richard Epstein.

As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on defining ideasover.org dot. If you found this conversation thought provoking, please share it with your friends so that others can find it and rate the show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church. We'll talk to you next time.

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